CONSTITUTIONAL BODIES

CONSTITUTIONAL BODIES

ELECTION COMMISSION OF INDIA

Election Commission is a permanent and an independent body established by the Constitution of India in order to ensure free and fair elections in the country. Article 324 provides that the power of superintendence, direction and control of elections to parliament, state legislatures, the office of president of India and the office of vice-president of India shall be vested in the election commission. In Mohinder Singh Gill vs Chief Election Commissioner, Supreme Court held that Article 324 contains plenary powers to ensure free and fair elections, and ECI can take all necessary steps to achieve this constitutional objective.

Composition of Election Commission

Article 324 provides Election Commission shall consist of the chief election commissioner and such number of other election commissioners, if any, as the president may from time-to-time fix.

• Prior to 1989: Election Commission worked as a single-member body.
• Between 1989-1990: President appointed two more election commissioners to cope with the increased work of the election commission on account of lowering of the voting age from 21 to 18 years.
• 1990-1993: The post of two election commissioners was abolished and ECI started working again as a single-member body.
• Post-1993: President again appointed two election commissioners and since then ECI is functioning as a 3-member body comprising of Chief Election Commissioner and two Election Commissioners.

 

Other information related to ECI

1. Tenure of Commissioners: They hold office for a term of six years or until they attain the age of 65 years, whichever is earlier.
2. Removal of Election Commissioners:
   • Chief Election Commissioner: He cannot be removed from his office except in the same manner and on the same grounds as a judge of the Supreme Court.
   • Election Commissioner: Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner.
3. Resignation: Election Commissioners including chief election commissioners can resign at any time or can also be removed before the expiry of their term.

 

Independence of ECI

• Security of tenure: The chief election commissioner is provided with the security of tenure. He cannot be removed from his office except in the same manner and on the same grounds as a judge of the Supreme Court.
• Service conditions: The service conditions of the chief election commissioner cannot be varied to his disadvantage after his appointment.
• Removal of other election commissioners: Any other election commissioner or a regional commissioner cannot be removed from office except on the recommendation of the chief election commissioner.

 

Powers and Functions of Election Commission

1. Administrative:

• Determination of territorial areas: To determine territorial areas of electoral constituencies throughout the country on the basis of the Delimitation Commission Act of Parliament.

• Electoral rolls: To prepare and periodically revise electoral rolls and to register all eligible voters.
• Schedule: To notify the dates and schedules of elections and to scrutinize nomination papers.
• Recognition: To grant recognition to political parties and allot election symbols to them.
• Code of conduct: To determine the code of conduct to be observed by the parties and the candidates at the time of elections.
• Roster for publicity: To prepare a roster for publicity of the policies of the political parties on radio and TV in times of elections.
• Supervision of election machinery: To supervise the machinery of elections throughout the country to ensure free and fair elections.
• Requisitioning the staff: To request the president or the governor for requisitioning the staff necessary for conducting elections.
• Registration of political parties: To register political parties for the purpose of elections and grant them the status of national or state parties on the basis of their poll performance.

2. Advisory

• Disqualification:
  • Advice to President: To advise the president on matters relating to the disqualifications of the members of Parliament.
  • Advice to Governor: To advise the governor on matters relating to the disqualifications of the members of the state legislature.
• President’s rule: To advise the President whether elections can be held in a state under president’s rule in order to extend the period of emergency after one year.

3. Quasi-judicial

• Dispute settlement: To act as a court for settling disputes related to granting of recognition to political parties and allotment of election symbols to them.
• Appointment of offices: To appoint officers for inquiring into disputes relating to electoral arrangements.
• Poll cancellation: To cancel polls in the event of rigging, booth capturing, violence, and other irregularities.

 

Issues associated with ECI

1. Structural issues

• Qualification of members: The Constitution has not prescribed the qualifications (legal, educational, administrative, or judicial) of the members of the Election Commission.
• Politicization of ECI: The Constitution has not debarred the retiring election commissioners from any further appointment by the government. Independence is prone to be compromised.

2. No legal backing for MCC: MCC is based on consensus among political parties.

• Confusion regarding enforceability: The legal sustainability of the Election Symbols Order, 1968 in suspending recognition seriously affects the functioning of the political parties.
• ECI’s reservation against bringing MCC under Representation of the People Act 1951: While the Parliamentary Committee recommended bringing MCC under RPA, 1951, ECI fears that it will lead to delay in elections due to judicial actions.

3. Limited powers of disqualification:

• False affidavit or suspension of material information: Such an act done by a candidate in the affidavit is not a ground for challenging the election or for rejection of nomination papers under RPA, 1951.
• Misuse of religion: Misuse of religion for electoral gain is a corrupt practice under RPA but can be challenged only through an election petition and is not a subject of inquiry by ECI.
• Disqualification: No power to disqualify candidates prior to conviction.

4. Control over political parties

• Ineffective control over political parties: ECI has no role in enforcing inner-party democracy and regulation of party finances.
• Power to de-register: ECI has power to register political parties but cannot de-register them.

5. Threat of institutional capture: If it ever happens that a person manning the commission shares or is wedded to a particular ideology, they could, by giving odd directions, cause political havoc or bring about a constitutional crisis [C. Jose vs Sivan Pillai].
6. Abrupt transfer of officials working under State governments by an order of ECI: In Mohinder Singh Gill’s case, Court held that ECI can draw power from Article 324 only when no law exists which governs a particular matter. However, such transfers are governed by rules made under Article 309 which cannot be bypassed by the ECI through Article 324.
7. Intervention in government decisions: As per MCC, ministers cannot announce any financial grants, make any ad hoc appointments in government departments or PSUs etc. However, Section 123 (2)(b) of RPA says that declaration of a public policy or exercise of a legal right will not be regarded as interfering with free exercise of electoral right.
8. Crisis of credibility: ECI has drawn flak over its response to the MCC violations such as use of the Indian Army in political rallies despite ECI giving warnings against it, VVPAT audits, and violations of the MCC by the Rajasthan Governor, etc.

• Due to this, the Constitutional Conduct group [a group of retired civil servants] wrote to the President, raising doubts about the credibility of ECI and the extent to which MCC is being followed by the ruling party.

9. Other issues: Gulf between ECI and voters, limited powers to legislate on such laws, and lack of infrastructure to monitor and ensure compliance.

 

Way forward

• Institutional autonomy: Elections are the bedrock of democracy and ECI’s credibility is central to democratic legitimacy. Therefore, the guardian of elections itself needs urgent institutional safeguards to protect its autonomy.
• Appointment of Chief Election Commissioner: A collegium headed by the Prime Minister with the Speaker of the Lok Sabha, the Leader of Opposition in the Lok Sabha, the law minister, and the Deputy Chairman of the Rajya Sabha as members should make recommendations for the consideration of the President for the appointment of the Chief Election Commissioner and the Election Commissioners [II ARC].
• Constitutional Protection: Protection against removal should be given to all the three election commissioners.
• Budget: Election Commission’s budget should be charged on the consolidated fund of India, thus not liable to be voted upon by the Parliament.
• Independent Secretariat: Reducing ECI’s dependence on DoPT, Law Ministry, and MHA by providing a separate independent secretariat.

 

UPSC & SPSC

Union Public Service Commission

The Union Public Service Commission is India’s premier central recruiting agency for central government public servants. It is responsible for appointments to and examinations for Group A & Group B posts under the civil services cadre and other Government posts.

Constitutional Provisions

• Article 315: There shall be a permanent Union Public Service Commission for appointment to various posts of the central government services.
• Article 318: It states that the Union Public Service Commission will be constituted with a chairman and members.
• Article 320: Functions of Public Service Commissions.
• Article 321: Power to extend functions of Public Service Commissions.
• Article 322: Expenses of Public Service Commissions.
• Article 323: Reports of Public Service Commissions.

 

Functions/Role/Powers

• Recruitment: It is tasked with the recruitment of All-India Services, Central Services, and Public Services for different Indian states and Union territory.
• Helping States: It helps the states in composing and implementing schemes of combined recruitment for any services.
• Advisory: It advises the President on “all matters relating to methods of recruitment to civil services and for civil posts.”
• Oversight: It looks at all disciplinary matters affecting a person serving under the Government of India.

 

Provision for Independence

• Appointment: The President appoints the Chairman and the members on the recommendations of the government.
• Fixed Tenure: A member of a commission shall hold office for a term of six years from the date on which he enters upon his office or until he attains the age of sixty-five.
• No Reappointment: The chairman or a member of UPSC is not eligible for reappointment to that office for a second term but a member can become chairman of UPSC.
• Removal: Can only be removed by the President on the ground of “misbehaviour” after the Supreme Court has reported that the Chairman or such other member ought to be removed.
• Report: It reports to the President.
• Allowances: They are charged on the Consolidated Fund of India and thus are not subjected to vote.

 

State Public Service Commissions

Similar to the UPSC, SPSC or State Public Service Commissions decide upon the appointment, recruitment, and personnel management of State Services.

• Article 315: Public service commissions for the Union and for the States.
• Article 316: Appointment and term of office of members.
• Article 317: Removal and suspension of a member of a Public Service Commission.
• Article 320: Functions of Public Service Commission.
• Article 321: Power to extend functions of Public Service Commission.
• Article 322: Expenses of Public Service Commission.
• Article 323: Reports of Public Service Commission.

 

Functions/Role/Powers

• Recruitment: It conducts examinations for appointments to the services of the state.
• Advisory: All matters relating to methods of recruitment to civil services and for civil posts and decisions on taking disciplinary action against officers.
• Personnel: It decides on making appointments to civil services, promotions, and transfers from one service to another and on the suitability of candidates.
• Oversight: It looks into all disciplinary matters affecting a person serving under the Government of India in a civil capacity, including memorials or petitions relating to such matters.

 

Provision for Independence

• Removal: The Chairman can be removed only by the President in the manner prescribed in the constitution.
• Fixed Tenure: Chairman and members serve for a tenure of 6 years or till 62 years of age, whichever is earlier.
• Reappointment: A chairman or member is only allowed reappointment as a member of UPSC or as a chairman of any other SPSC. They are not eligible for reappointment in a second term.
• Reports: It reports to the Governor of the state.
• Allowances: They are charged on the Consolidated Fund of the state and thus are not subject to a vote in the legislature.

 

Differences between UPSC and SPSC

Parameters	UPSC	SPSC
Appointment	Appointed by the President.	Appointed by the Governor.
Retirement Age	65 Years	62 Years
Expenses/Allowances	Charged on the Consolidated Fund of India	Charged on Consolidated Fund of the State
Reappointment	Not eligible for reappointment. Only members can be appointed as Chairman.	Can only be appointed as member/chairman of UPSC or chairman of another SPSC.
Advisory	Advises the President.	Advises the Governor.
Recruitment/Conducting Exams	All India Examinations and National level examinations.	State level Exams and services.
Removal/Suspension	By President	By President/Governor.

Joint Public Service Commissions [Statutory Body]

The Constitution makes a provision for the establishment of a Joint State Public Service Commission (JSPSC) for two or more states. JSPSC is created by a Parliament act on a concerned state legislature’s request.

 

Key Features

• Appointment: The President appoints the chairman as well as the members of a JSPSC.
• Tenure: The office is held by them for a six-year term or until the age of 62 years is attained by them, whichever is earlier.
• Removal: The President can remove or suspend them. They can also submit their resignation letters to the president anytime.

• Service Conditions: The president determines the number of members of a JSPSC and their conditions of service.
• Report: An annual performance report is presented by a Joint State Public Service Commission to each of the concerned state governors.
• UPSC Supervision: The UPSC can also serve the needs of a state on the State Governor’s request and with the president’s approval.

FINANCE COMMISSION

The Finance Commission is constituted by the President under Article 280 of the Constitution, mainly to give its recommendations on the distribution of tax revenues between the Union and the States and amongst the States themselves. It is a quasi-judicial body. The Commission determines its procedure and has such powers in the performance of their functions as Parliament may by law confer on them. Recommendations made by the FC are only advisory in nature.

 

Qualifications of members of Finance Commission

As per the provisions contained in the Finance Commission [Miscellaneous Provisions] Act, 1951, and The Finance Commission (Salaries & Allowances) Rules, 1951:

1. Chairman: To be selected from among persons who have had experience in public affairs.
2. Other members: From among persons who:
   • are, or have been, or are qualified to be appointed as Judges of a High Court; or
   • have special knowledge of the finances and accounts of Government; or
   • have had wide experience in financial matters and in administration; or
   • have special knowledge of economics.

 

Functions of Finance Commission

The Finance Commission has the following functions or duties:

• The Commission makes recommendations to the President of India on the distribution of tax proceeds between the Union and the States and the share of each state.
• The Commission also decides the principles that govern the payment of grants-in-aid to states from the Consolidated Fund of India.
• The President of India can also refer any other matter to the Finance Commission in the interest of building a sound financial system.

Implementation of recommendation of Finance Commission

To be implemented by an order of the President	To be implemented by executive orders
The recommendations relating to: Distribution of Union Taxes and Duties Grants-in-aid	Other recommendations to be made by the Finance Commission, as per its Terms of Reference

 

FIFTEENTH FINANCE COMMISSION

Composition:

• Chairman: Mr. N.K Singh
• Members: Shaktikanta Das, Dr. Anoop Singh, Dr. Ashok Lahiri, Dr. Ramesh Chand

 

Tenure: Its recommendations will cover the five-year period from 2021-22 to 2025-26.

 

Terms of Reference of the Finance Commission

It is the duty of the Commission to make recommendations to the President as to:

• Distribution of net proceeds of taxes: The distribution between the Union and the States of the net proceeds of taxes.
• Grants-in-aid: The principles which should govern the grants-in-aid of the revenues of the States out of the Consolidated Fund of India.
• Augmenting Resources of Panchayat: The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Panchayats.
• Augmenting Resources of Municipalities: The measures needed to augment the Consolidated Fund of a State to supplement the resources of the Municipalities.
• Others: Any other matter referred to the Commission by the President in the interests of sound finance.

 

Parameters for performance-based incentives

Under 15th FC TOR, the Commission will recommend performance-based incentives to the states depending on the following parameters:

• GST: Efforts made by the States in expansion and deepening of the tax net under GST.
• Population Growth: Efforts and progress made in moving towards the replacement rate of population growth.
• Flagship schemes: Achievements in the implementation of flagship schemes of the Government of India, disaster-resilient infrastructure, SDGs, and quality of expenditure.
• Capital expenditure, power sector etc.: Progress made in increasing capital expenditure, eliminating losses of the power sector, and improving the quality of such expenditure to generate future income streams.
• Increasing revenues, savings: Progress made in increasing tax/non-tax revenues, promoting savings by adopting Direct Benefit Transfers and the Public Finance Management System, and promoting the digital economy.
• Ease of Doing Business: Progress made in promoting ease of doing business by effecting related policy and regulatory changes and promoting labor-intensive growth.
• Grants for Local bodies: Provision of grants in aid to local bodies for basic services, including quality human resources, and the implementation of a performance grant system to improve the delivery of services.
• Populist measures: Control or lack of it in incurring expenditure on populist measures.
• Hygiene: Progress made in sanitation, solid waste management, and bringing in behavioral change to end open defecation.

 

Recommendations of the 15th Finance Commission

1. Horizontal Devolution of taxes to states: The share of states in the centre’s taxes is recommended to be 41% for 2020-21 (decreased from 42% during the FY 2015-20 period).
   • Decrease: To provide for the newly formed union territories of Jammu and Kashmir, and Ladakh from the resources of the central government.
   • Gross Tax Revenue: For the 5-year period, it is expected to be 135.2 lakh crore. Out of that, the divisible pool is estimated to be 103 lakh crore.
   • Aggregate transfers to States: It is estimated to remain at around 50.9% of the divisible pool during the 2021-26 period.

 

1. Criteria for Vertical devolution

Criteria	Meaning	Weight assigned by 14th FC	Weight assigned by 15th FC [2020-21]	Weight assigned by 15th FC [2021-26]
Equity-based criteria
Income Distance	It is the distance of the state’s income from the state with the highest income.  The income of a state has been computed as the average per capita GSDP during the three-year period between 2015-16 and 2017-18.  For 2021-26, this period is 2016-17 to 2018-19. States with lower per capita income would be given a higher share.	50.0	45.0	45.0
Need-based criteria
Population (1971)	15th FC used only 2011 population data for its recommendations.	17.5	–	–
Population (2011)	–	10.0	15.0	15.0
Area	–	15.0	15.0	15.0
Forest Cover	It has been arrived at by calculating the share of dense forest of each state in the aggregate dense forest of all the states.	7.5	10.0	10.0
Performance-based criteria
Demographic Performance	It will be computed by using the reciprocal of the total fertility ratio of each state, scaled by 1971 population data.  States with a lower fertility ratio will be scored higher on this criterion.	–	12.5	12.5
Tax Effort	It has been computed as the ratio of the average per capita own tax revenue and the average per capita state GDP during the three-year period between 2014-15 and 2016-17. For 2021-26, this period is 2016-17 to 2018-19.	–	2.5	2.5
Total		100	100	100

3. Grants-in-aid

• Revenue deficit grants:
  • 2020-21: 14 states to the tune of Rs 74,341 crore.
  • 2021-26: 17 states will receive grants worth Rs 2.9 lakh crore to eliminate revenue deficit.

• Sector-specific grants: Sector-specific grants of Rs 1.3 lakh crore will be given to states for sectors like school education, higher education, implementation of agricultural reforms, maintenance of PMGSY roads, judiciary, statistics, and aspirational districts and blocks. A portion of these grants will be performance-linked.
  • Example: The Commission has recommended a grant of Rs 7,375 crore for nutrition.
• State-specific grants: The Commission recommended state-specific grants of about 0.5 lakh crore. These will be given in the areas of social needs, administrative governance, and infrastructure, etc.
• Grants to local bodies: The grants will be made available to all three tiers of Panchayat—village, block, and district.

 

Grants to local bodies	2020-21	2021-26	Other information
Total grants	Rs 90,000 crore	Rs 4.36 lakh crore	Division between states: The grants will be divided between states based on population and area in the ratio 90:10. No grants will be released to local bodies of a state after March 2024 if the state does not constitute a State Finance Commission and act upon its recommendations by then.
Rural local bodies	Rs 60,750 crore	Rs 2.4 lakh crore
Urban local bodies	Rs 29,250 crore	Rs 1.2 lakh crore
Others	Rs 70,051 crore for health grants through local governments		To be provided for: (i) conversion of rural sub-centres and PHCs to health and wellness centres (HWCs), (ii) support for diagnostic infrastructure for primary healthcare activities, and (iii) support for urban HWCs, sub-centres, PHCs, and public health units at the block level.

 

• Disaster risk management:
  • National and State Disaster Management Funds: The Commission recommended setting up National and State Disaster Management Funds (NDMF and SDMF) for the promotion of local-level mitigation activities.
  • Cost sharing pattern: The Commission has recommended retaining existing cost-sharing patterns between the centre and states for disaster management funds. The cost-sharing pattern between centre and states is 90:10 for north-eastern and Himalayan states, and 75:25 for all other states.
  • Establishment of Million-Plus Cities Challenge Fund: The Commission has recommended Rs 8,000 crore to states for incubation of new cities, granting Rs 1,000 crore each for eight new cities. The focus is on improvement in air quality and meeting the service level benchmark of solid waste management and sanitation.

4. Recommendations on fiscal roadmap

• Fiscal deficit and debt levels:
  • Centre: The Commission suggested that the Centre bring down the fiscal deficit to 4% of GDP by 2025-26.
  • States: It recommended the fiscal deficit limit (as % of GDP) of:

• Extra annual borrowing worth 0.5% of GSDP: It will be allowed to states during the first four years (2021-25) upon undertaking power sector reforms.
• High-powered inter-governmental group: It recommended forming such a group to review the FRBM Act and recommend a new FRBM framework for the centre as well as states, and oversee its implementation.
• Revenue mobilisation: Income and asset-based taxation should be strengthened.
  • To reduce excessive dependence on income tax on salaried incomes, the coverage of provisions related to TDS/TCS should be expanded.
  • Stamp duty and registration fees at the state level have large untapped potential.
  • Computerised property records should be integrated with the registration of transactions, and the market value of properties should be captured.
  • State governments should streamline the methodology of property valuation.
• Off-budget borrowings: It recommended:
  • Both the central and state governments should make full disclosure of extra-budgetary borrowings [1st Report for FY 2020-21].
  • The centre as well as states should not resort to off-budget financing or any other non-transparent means of financing for any expenditure [2nd Report for FY 2021-26].
• Public financial management:
  • Expert group to develop a Framework for financial management system: To provide for a statutory framework for sound public financial management system to provide for budgeting, accounting, and audit standards to be followed at all levels of government.
  • Fiscal Council: An independent Fiscal Council should be established with powers to assess records from the centre as well as states. The Council will only have an advisory role.
  • Phased adoption of accounting and reporting: A time-bound plan for phased adoption of standard-based accounting and financial reporting for both centre and states should be prepared.
  • A standardised framework for reporting of contingent liabilities should be devised.
  • Accuracy in forecasting: Both centre and states should strive to improve the accuracy and consistency of macroeconomic and fiscal forecasting.
  • Amending fiscal responsibility legislation: States should amend their fiscal responsibility legislation to ensure consistency with the centre’s legislation, in particular, with the definition of debt.
  • Short-term borrowings for States: States should have more avenues for short-term borrowings other than the ways and means advances, and overdraft facility from RBI.
  • Debt management cell: States may form an independent debt management cell to manage their borrowing programmes efficiently.
• Tax capacity: In 2018-19, the tax revenue of state governments and the central government together stood at around 17.5% of GDP, which is far below the estimated tax capacity of the country. The Commission recommended:
  • broadening the tax base,
  • streamlining tax rates,
  • increasing the capacity and expertise of tax administration in all tiers of the government.
• GST:
  • First Report [FY 2020-21]: High dependence of states on compensation from the central government (21 out of 29 states in 2018-19) for making up for the shortfall in revenue. The Commission highlighted some challenges with the implementation of GST.

• Large shortfall in collections as compared to original forecast,
• High volatility in collections,
• Accumulation of large integrated GST credit,
• Glitches in invoice and input tax matching, and
• Delay in refunds.

• Second Report [FY 2021-26]: Recommendations made by the Commission:
  • Inverted duty structure: The inverted duty structure present in GST needs to be resolved.
  • Revenue neutrality: Revenue neutrality of the GST rate should be restored, which has been compromised by multiple rate structures and several downward adjustments.
  • Rationalization of rate: The rate structure should be rationalized by merging the rates of 12% and 18%.
  • Expanding base: States need to step up field efforts for expanding the GST base and ensuring compliance.

5. Other recommendations

• Health:
  • Spending on health: States should increase spending on health to more than 8% of their budget by 2022.
  • Primary healthcare expenditure: It should be 2/3rd of the total health expenditure by 2022.
  • Flexibility of schemes: Centrally sponsored schemes (CSS) in health should be flexible enough to allow states to adapt and innovate. The focus of CSS in health should be shifted from inputs to outcomes.
  • All India Medical and Health Service should be established.
• Funding of defence and internal security:
  • Modernisation Fund for Defence and Internal Security (MFDIS): It should be a dedicated non-lapsable fund to bridge the gap between budgetary requirements and allocation for capital outlay in defence and internal security.
  • Corpus of the fund: An estimated corpus of Rs 2.4 lakh crore over the five years (2021-26). Of this, Rs 1.5 lakh crore to be transferred from the Consolidated Fund of India and the rest from disinvestment of defence PSEs and monetisation of defence lands.
• Centrally-sponsored schemes (CSS):
  • Annual allocation: A threshold should be fixed for annual allocation to CSS, below which the funding for a CSS should be stopped.
  • Evaluation: Third-party evaluation of all CSS should be completed within a stipulated timeframe.
  • Funding: The funding pattern should be fixed upfront in a transparent manner and be kept stable.

 

Issues with recommendations of Fifteenth Finance Commission

1. Issues with parameters for performance-based incentives:

• Deepening of GST tax net: Different states have different abilities to deepen the GST tax net, owing to different economic, geographic, and political factors.
• Tied funds to government programmes on sanitation etc.: While the devolution of funds from the Finance Commission is a constitutional right of states, schemes such as the Swachh Bharat Mission are imposed on states by the Centre.
• Populist schemes: States such as Tamil Nadu run several populist schemes such as the provision of freebies during elections, etc. States have fears of being reviewed negatively due to this.

• Promoting ease of doing Business: This index has many problems, as it promotes race to the bottom among states to dismantle all regulation, which is not in India’s overall interests and should be left to individual states’ will.
• Population control measures: Apprehension in Northern states due to higher fertility rates compared to southern states.

2. Reduced grants to States

• Decline in central tax devolution to states: It peaked at Rs 7.6 trillion in 2018-19, which declined by 15% a year for the next two years and is forecasted to be Rs 6.7 trillion in 2021-22 (lower than 2017).
• Decline in the horizontal share of 10 states: Karnataka is the biggest loser, while Maharashtra is the biggest gainer.
• Reduced grants to states because of Exclusive Expenditure on defence: 1% of the grants to states and about 0.5% of the total transfers finance the Centre’s exclusive defence expenditure.

3. Issue with distribution: Moving towards partisan federalism.

• Moving towards performance and efficiency-based devolution: Shift away from need and equity-based devolution due to increased weightage on performance-based indicators.
• Less progressive: Lowest weightage for equity makes the XVFC transfers potentially the least progressive ever.

4. Others:

• 2011 Census Data: The Commission used 2011 population data for its recommendations. This was contentious due to active opposition from Southern States regarding the use of 2011 population data.
• Long-term issues: Drop-in grants and tapering off of revenue deficit grants will impact states’ finances.
• Increased share of conditional grants: 57% of the grants accepted by the government [Feb 2021] are conditional, compared to just 17% for the 14th FC.
• Makes the system more discretionary: By increasing the share of total grants (statutory and non-statutory) – 55% of total transfers, and reducing tax devolution in aggregate transfers to 45%.

 

NATIONAL COMMISSION FOR SCHEDULED CASTES & NATIONAL COMMISSION FOR SCHEDULED TRIBES

NCSC is a constitutional body that works to safeguard the interests of the scheduled castes (SC) in India, while NCST works similarly for the Scheduled Tribes. Article 338 and 338A of the constitution of India deal with NCSC and NCST respectively.

Data Population: The Scheduled Castes and Scheduled Tribes comprise about 16.6% and 8.6%, respectively, of India’s population (according to the 2011 census). Rise of crime against SC/STs: Crime against Scheduled Castes and Scheduled Tribes saw a rise of 7% and 26% in 2019 (NCRB).

 

History and Origin:

• Special Officer: Initially, the constitution provided for the appointment of a Special Officer under Article 338.

• 65th Amendment (1990): It replaced the one-member system with a multi-member National Commission for Scheduled Castes (SC) and Scheduled Tribes (ST).
• 89th Amendment (2003): National Commission for SC and ST was replaced by two separate Commissions from the year 2004, which were: National Commission for Scheduled Castes (NCSC) and National Commission for Scheduled Tribes (NCST) – under Article 338-A.

 

Functions of Both National Commissions

• Safeguards: They have the power to investigate, monitor, and evaluate the working of safeguards provided under the constitution for scheduled castes/scheduled tribes.
• Development: It participates and advises on the socio-economic development of scheduled castes/scheduled tribes and also evaluates the progress of their development.
• Reports: It submits reports upon the working of safeguards for scheduled castes/scheduled tribes to the President.
• Other functions: It has to perform other functions related to protection, welfare, and development and advancement of scheduled castes or scheduled Tribes as the President may specify, subject to any parliamentary law.
• Quasi-Judicial Powers: Both commissions have the powers of a civil court.
• Anglo Indians: The NCSC performs all the above-given functions for Anglo-Indians as well.

 

Common Issues faced by NCSC/NCST

1. Delays in Appointment: The appointment of the NCSC chairperson is often delayed by several months after the tenure of the previous chair ends.
   • Example: The present chairman was appointed after almost 9 months since the tenure of the previous chair ended.
2. Non-Binding Nature: Even though the Commission has extensive powers of investigation and inquiry, and can fix responsibility and recommend action, its recommendations are not binding.
3. Delay in Reports: Annual reports submitted by the commissions are often tabled in the parliament nearly 2 years after submission.
   • Example: Reports of the NCST since 2018 are still under process in the Ministry of Tribal Affairs and have not been presented to Parliament to date.
4. Non-Inclusive: Since the Commission acts mainly on complaints, it has been less sensitive to poor Dalits who face challenges due to lack of education or information.
5. Irregularity: Commission meetings are not regular, impeding the resolution of cases.
   • Example: According to the National Commission of Scheduled Tribes’ website, in the financial year 2021-22, it met only four times.
6. Lack of Political Will: Concerned Ministries/Departments have not been forthcoming with recommendations. The commission has struggled to resolve issues stemming from government-backed development activities impacting the lives of tribals.
   • Example: The commission was unable to safeguard the tribal rights of the Dongria Kondh community in Odisha, who faced eviction due to a Vedanta development project.
   • The rights of tribals over natural resources have been reduced over the years due to concepts like protected forests.
7. High Volume of Cases: Both NCSC and NCST have a high number of pending cases related to atrocities.
   • Data: NCRB data shows a spike in the number of cases filed under the SC/ST Prevention of Atrocities Act, indicating increasing discrimination and violence.
8. Ineffective Mechanism: The mandate and mechanisms of both commissions have been seen as ineffective in preventing various atrocities against castes and tribes.
   • Examples:

• The incidents like Dalit lynching in Una, Gujarat; caste-related honour killings in Haryana show that the commission has been ineffective in bringing behavioural change in society.
• NCSC was helpless and ineffective in stopping the eviction of tribals in the name of development, which deprived them of their basic human rights.
• The Supreme Court order of eviction of more than one million forest-dwelling people went against the spirit of the Forest Rights Act.

 

Steps to Strengthen NCSC/NCST

1. Strengthen the legal and judicial protection under the Scheduled Castes and Tribes (Prevention of Atrocities) Act.
   • Developing SOP: There is a need to develop SOPs for filing and investigating cases under relevant laws and make them available in all languages at all police stations.
   • Rewarding the Prosecutors: There is also a need to reward prosecutors who succeed in getting convictions in cases charged under the SC/ST Act.
   • Online Reporting: There should be online reporting and tracking of crimes, irrespective of jurisdiction, especially having the option of online reporting given to workplaces.
     • Data: The data received under the RTI Act points out the pile of complaints on issues related to atrocities in public places and ‘Service Atrocities’.
   • Capacity Building: Enhanced training and capacity building of judges, lawyers, and policemen, so that they are sensitive to issues faced by SCs/STs.
   • Setting up Special Courts: Article 338 provides for setting up special courts for trying offences, but due to complications in procedure, a charge sheet cannot be filed in court. The act needs amendment to simplify this provision.
2. Governance Related:
   • Funding Provisions:
     • Scheduled Caste: Each ministry is supposed to set aside 15% of its spending in a Scheduled Caste Sub Plan (SCP).
     • Scheduled Tribe: Tribal Sub-Plan (TSP) is developed to bridge the gap between the Schedule Tribes (STs) and the general population with respect to all socio-economic development indicators in a time-bound manner. TSP is not applicable to states where tribals represent more than 60% of the population.
   • Prioritising funding: NCSC/NCST should work with legislators to identify four or five priorities across all government schemes and reorient all spending (SCP/TSP) around those priorities.
   • Developing Monitoring Mechanisms: There is a need to track the output of SCPs/TSPs every quarter/month through a dashboard, just as the Niti Aayog tracks development in the “Aspirational Districts”.
   • Setting up Committees: Various committees should be set up from time to time to look into the issues faced by the Scheduled Castes/Scheduled Tribes.
   • Political Accountability: The memorandum of action taken/proposed to be taken on its recommendations should be separately laid in the Parliament/State Legislature within six months of submission of the report.
3. Recognition of Social Impact:
   • Rewarding Good Work: Innovation, effectiveness, and positive impact of the work done by a department or a body can be recognised by the Commission.
   • Competitive Federalism: There can also be ranking of states for their innovation, effectiveness, and impact in uplifting the socio-economic status of SCs/STs.
   • Sharing Best Practices: Each state or department can share and replicate successful modules with highly beneficial practices.
4. Engaging with Civil Society

• Social change: Catalysed through civil society, corporations, and communities.
• Behavioural nudge: The Commission can identify social practices that promote discrimination and help civil society and the government organize debates, deliberations, and awareness campaigns around them.
• Youth Representatives: There is a need for NCSC/NCST to engage with young representatives of SCs/STs, especially those situated on college and university campuses.
  • Example: The case of Rohith Vemula reflects that discrimination is not only due to backwardness, illiteracy, and lack of awareness in society but is pervasive and present even in the best universities and workplaces. The commission has been ineffective in preventing such instances.
• Creating Caste/Tribe Alumni: NCSC/NCST can help create a network of Scheduled Caste/Scheduled Tribe alumni from IIMs and IITs and encourage them to suggest and implement ideas within and around their organizations to advance the economic empowerment of Scheduled Castes/Scheduled Tribes.
• Preparing for future challenges by facilitating interdisciplinary research: The Commission can invite central universities and civil society to identify the five biggest challenges that Scheduled Castes/Scheduled Tribes are likely to face in the next five years and suggest ways to mitigate them.

1. Economic Empowerment

• Creating Entrepreneurs: NCSC/NCST should promote subsidized and short-term management training courses for SC/ST entrepreneurs who want to expand and learn new skills.
  • Example: Stand Up India Scheme.
• Integration with Mainstream: They need support in integrating and competing with local and other markets, which NCSC/NCST can provide through mentoring and non-financial assistance.

1. Social Awareness Generation

• Social Upliftment Needed: Jobs, schemes, and police efforts are not the only ways to improve the social status of Scheduled Castes/Scheduled Tribes.
• Use of Media: Promoting cultural advancement of Scheduled Castes/Scheduled Tribes using both new and traditional media is necessary to break stereotypes.
• Awarding media showcasing main issues of Scheduled Castes: NCSC/NCST can recognize and reward filmmakers, photographers, and artists whose works reflect the concerns and pride of their communities.

The commission has worked to protect and support vulnerable communities, acting as a guardian for the Scheduled Castes/Scheduled Tribes. However, issues like social exclusion, rising crimes against vulnerable groups, and poor social and economic development persist despite significant efforts.

 

NATIONAL COMMISSION FOR BACKWARD CLASSES 

The National Commission for Backward Classes (NCBC), which was a statutory body constituted in 1993 under the National Commission for Backward Classes Act, was given constitutional status by the 102nd constitutional amendment (2018) through the insertion of Articles 338B and Article 342A in the Constitution.

Provisions of 102nd constitutional amendment act (2018): It inserted two new articles:

• Article 338B provides authority to NCBC to examine complaints and welfare measures regarding socially and educationally backward classes.
• Article 342A empowers the President to specify socially and educationally backward classes in various states and union territories. He can do this in consultation with the Governor of the concerned State.

 

Role of National Commission of Backward Classes before constitutional status

• Recommend inclusion and exclusion of OBCs: It could only recommend inclusion and exclusion of castes from the OBCs list and determine the level of income that defines the “creamy layer” among these castes for reservation benefits.
• Investigation of matters: All matters relating to constitutional and other legal safeguards for OBCs were investigated by the National Commission for Scheduled Castes.
• Grievance redressal: The National Commission for Scheduled Castes was responsible for hearing grievances from OBCs under Article 338 of the Constitution.

 

Present Role of National Commission for Backward Classes (NCBC)

• Protection of constitutional safeguards: It has the authority to examine, monitor, and evaluate the implementation of constitutional provisions for the socially and educationally disadvantaged (SEdBCs).
• Socio-economic development: It advises on and engages in socio-economic growth for SEdBCs, assessing their progress.
• Inquiry into complaints: It inquires into specific complaints regarding the deprivation of rights and safeguards for the socially and educationally backward classes.
• Power of a civil court: It now holds all the powers of a civil court when trying a suit and can summon individuals, require documents to be produced, and receive evidence on affidavit.
• Grievance redressal: The new NCBC has the added function of grievance redress for backward classes.
• Present reports to President: It is mandated to present annual and special reports to the President on the working of safeguards.
• Other functions: It performs other functions related to protection, welfare, and development of SEdBCs as specified by the President, subject to parliamentary law.

 

Significance of granting constitutional status to NCBC

• Justice to backward classes: It helps address the concerns of backward classes and promote social equality.
• Fight atrocities: It aids in fighting atrocities against backward classes and ensuring quick justice.
• Increased status: It elevates NCBC to the level of the National Commission for Scheduled Castes and the National Commission for Scheduled Tribes.

• Democratic functioning: The addition of at least two people with special understanding of backward classes and one woman to NCBC is a positive step toward making the commission more democratic and effective in advancing the interests of SEdBCs.
• Transparency: It will lead to greater transparency and openness in the functioning of the commission, as Article 342A makes it mandatory to take the concurrence of Parliament for adding or deleting any community in the backward list.

 

While giving NCBC constitutional status is a step in the right direction, other measures such as sub-categorization of OBCs and political will for proper representation are needed to ensure comprehensive and holistic development of the OBCs.

 

105th CONSTITUTIONAL AMENDMENT ACT

• Purpose of Amendment: To create a Central List of OBCs that would be applied only to the Central Government and its institutions.
• Restore power of State government: It seeks to restore the power of State governments to identify OBCs that are socially and educationally backward.
• Notification by state assembly: The “state list” will be completely taken out of the ambit of the President and will be notified by the state assembly.
• Consultation with NCBC not required: The Act stated that the NCBC’s powers and responsibilities did not apply to independent State lists, indicating that States do not need to consult the National Commission.
• Social Empowerment: This will benefit around 671 OBC communities, as without the state list, nearly 671 OBC communities would have lost access to reservations in educational institutions and employment.

 

Sub-categorization of OBCs 

OBCs are granted 27% reservation in jobs and education under the central government, but only a few affluent communities among the over 2,600 included in the Central List of OBCs have secured a major share. In August 2018, it was announced that the data of OBCs would also be collected in the Census 2021, but no further announcements were made.

 

Idea of sub-categorization

1. First Backward Class Commission report (1955): Proposed sub-categorization of OBCs into backward and extremely backward communities.
2. Mandal Commission report (1980): A dissent note by member L.R. Naik proposed sub-categorization into intermediate and depressed backward classes.
3. National Commission of Backward Classes (2015): Proposed that OBCs be divided into the following three categories:
   • Extremely Backward Classes (EBC-Group A): Facing social, educational, and economic backwardness even within OBCs, consisting of aboriginal tribes, nomadic and semi-nomadic tribes who continue with traditional occupations.
   • More Backward Classes (MBC-Group B): Consisting of vocational groups involved in traditional occupations.
   • Backward Classes (BC-Group C): Comprising those comparatively more forward.
4. According to NCBC, 11 states (Andhra Pradesh, Telangana, Puducherry, Karnataka, Haryana, Jharkhand, West Bengal, Bihar, Maharashtra, Rajasthan, and Tamil Nadu) have sub-categorized OBC for reservations in state government-owned institutions.

 

Current Developments: The Union Cabinet has given the 13th extension to the Justice Rohini Commission to examine sub-categorization of OBCs and submit its report by January 31, 2023. The 105th Constitutional Amendment Act, 2021 has restored state governments’ power to prepare the Socially and Educationally Backward Classes (SEBC) list.

 

Commission’s Terms of References:

• To examine the uneven distribution of reservation benefits among different castes in the central OBC list.
• To work out the mechanism, criteria, norms, and parameters in a scientific approach for sub-categorization within such OBCs.
• To take up the exercise of identifying the respective castes/communities/sub-castes/synonyms for comprehensive data coverage.
• To study and recommend correction of any repetitions, ambiguities, inconsistencies, and errors of spelling or transcription.

 

Findings So Far:

1. According to the 2018 data analysis of 1.3 lakh central jobs and admissions to central higher education institutions given under the OBC quota:
   • 24.95% of these jobs and seats have gone to just 10 OBC communities.
   • 97% of all jobs and educational seats have gone to just 25% of all sub-castes classified as OBCs.
   • Representation in jobs and educational institutions: 983 OBC communities, 37% of the total, have zero representation in jobs and educational institutions.
   • Representation in recruitments and admissions: 994 OBC sub-castes have a total representation of only 2.68% in recruitment and admissions.
2. According to the 2018-19 annual report of the Department of Personnel and Training, OBC recruitment in central jobs is considerably low.
   • Number of professors in central universities: Not a single professor and associate professor appointed under the OBC quota in central universities. Posts reserved for them were being filled by people of the general category as OBC candidates were declared “None Found Suitable” (NFS).

 

Need for sub-categorization:

• Equitable distribution of representation: As highlighted by the Rohini Commission, about 1,900 out of 2,633 central list OBCs have not proportionately benefitted.
• For betterment of more backward: It will help more backward among the OBC communities to access the benefits of reservation for educational institutions and government jobs.
• Justice Rohini Commission: It has proposed a four-category formula for the equitable redistribution of the 27% quota for OBCs.

 

SPECIAL OFFICER FOR LINGUISTIC MINORITIES

A Special Officer for Linguistic Minorities is an officer appointed by the President of India to safeguard the rights of linguistic minorities.

Constitutional Provision

• Article 350-B: Added by the Seventh Constitutional Amendment Act of 1956.
  • It provides for a Special Officer for Linguistic Minorities appointed by the President of India.
  • It is the duty of the Special Officer to investigate all matters relating to the safeguards provided for linguistic minorities under the Constitution.

 

Data Census of 2011: About 36.3 million of India’s population speaks an “absolute minority language,” which in every one of India’s 28 States forms a minority. Extinction: India has 1,599 languages, most of which are dialects. These are restricted to specific regions, and many of them are on the verge of extinction. According to Press Trust of India: More than 19,500 languages or dialects are spoken in India as mother tongues. There are 121 languages which are spoken by 10,000 or more people in India. Current Incidence One nation, one language: Recently, Home Minister Amit Shah stated that if one language can do the work of uniting the country, it is the most spoken language, Hindi. This has revived the debate of imposition of Hindi under the name of “One nation, One language.” State Initiatives: The Tamil Nadu government set up the Tamil Nadu Linguistic Minorities Social and Economic Development Corporation (TALMEDCO) under the Companies Act, 2013, to cater to the needs of linguistic minorities not covered by religious minorities. It serves as a nodal agency to implement and channel various government policies and programmes for the development of linguistic minorities and facilitates access to government services.

 

Need for a Special Linguistic Officer

• Diverse country: In a diverse country like India, there are also discriminations related to language.
• Constitutional obligation: Protecting people who speak minority languages is a constitutional duty of the government (Art-29, 30).

 

Functions of the officer

• Investigate matters: To investigate all issues related to the safeguards for linguistic minorities.
• Submit report: To report to the President on the status of implementation of constitutionally and nationally agreed safeguards for linguistic minorities.
• Monitor implementation of safeguard: To oversee the implementation of safeguards through questionnaires, visits, conferences, seminars, and meetings.
• Grievance on implementation: To address grievances related to the non-implementation of constitutional and nationally agreed safeguards for linguistic minorities.

Objectives

• Provide equal opportunities: To ensure inclusive development and national integration for linguistic minorities.
• Spread awareness: To inform linguistic minorities about available safeguards.
• Ensure effective implementation of the safeguards: For linguistic minorities as outlined in the Constitution and agreed to by states/UTs.
• Grievance redressal: To handle and respond to grievances related to linguistic minority safeguards.

India, as a diverse country with a variety of languages, faces a constant threat of linguistic extinction. The Special Officer for Linguistic Minorities should actively work to protect India’s linguistic heritage.

 

COMPTROLLER AND AUDITOR-GENERAL OF INDIA (CAG)

CAG is an independent authority under the Constitution of India. He is the head of the Indian audit and accounts department and the chief guardian of the public purse. His duty is to uphold the Constitution of India and the laws of Parliament in the field of financial administration.

Constitutional Provision: (148-151)

• Article 148: Appointment, oath, and conditions of service of CAG.
• Article 149: Deals with Duties and Powers of the Comptroller and Auditor-General of India.
• Article 150: The accounts of the Union and the States shall be kept in formats prescribed by the president on advice of CAG.
• Article 151: The reports of the CAG of India relating to the accounts of the Union shall be submitted to the president, who will lay them before Parliament.

Data Environment Audit: According to a recent report by CAG, forest cover in Gujarat decreased between 2006 and 2017. Social Audit: The Health Management Information System, aimed to address data gaps, struggled to maintain physical records as per the CAG report, 2017.

 

Comparison with Britain CAG

Parameters	Britain CAG	India CAG
Role	Both Comptroller and Auditor General	Only Auditor General (not Comptroller)
Incidence	No money can be drawn from the public exchequer without the CAG’s approval	CAG audits accounts post expenditure (ex post facto)
Position in Parliament	CAG is a member of the House of Commons	CAG is not a member of Parliament

 

Duties and Role of CAG

1. CAG as an Auditor:
   • Funds pertaining to Centre: Audits the Consolidated Fund of India, Contingency Fund of India, and Public Account of India.
   • Funds pertaining to States & UTs: Audits Consolidated Fund, Contingency Fund, and Public Account of each state/UT with a legislative assembly.
   • Other Government Subsidiaries: Audits trading, manufacturing, profit and loss accounts, balance sheets, and other accounts of government departments.
   • Subsidiaries financed by Government: Audits receipts and expenditures of entities substantially financed by the central or state revenues.
2. CAG as a Financial Administrator:
   • Ascertains Revenue: Certifies net proceeds of taxes/duties, with certification being final.
   • Financial administration: Ensures accountability of the executive (COM) to Parliament, upheld through audit reports.

 

1. CAG as an Anti-Corruption Institution:
   • Accountability: Maintains checks on the financial administration through audit reports to ensure executive accountability.

• Ensure financial transparency: The CAG ensures that the money shown in the accounts as disbursed was used for its intended purpose.
• Fiscal watch: The CAG can conduct a propriety audit to examine the wisdom, faithfulness, and economy of government expenditure and comment on wastefulness or extravagance.
• Effective check: The CAG audits all receipts payable into the Consolidated Fund of India, ensuring proper assessment, collection, and revenue allocation.
• Expose corruption: CAG reports play a crucial role in uncovering corruption and misuse of government funds. For example, the CAG was instrumental in exposing the coal scam.

 

Challenges

1. Institutional
   • No criteria for appointment: There is no specified criterion for the appointment of the CAG in the Constitution or statutory provisions.
   • Sole power to executive: The political executive has exclusive power to appoint the CAG, contrary to international best practices.
   • Break in tenure: Although the Constitution allows for a 6-year term, the age cap of 65 years often reduces the actual tenure.
     • Impediment due to shorter tenure: Affects the continuity and expertise of the institution.
     • International comparison: The UK CAG has a 10-year term, and the US Comptroller General serves for 15 years.
2. Administrative
   • No statutory backing: The Indian Audit & Accounts Department (IA&AD) performs audit functions without statutory recognition, unlike the UK’s National Audit Office.
   • Improve audit quality and credibility: Recognizing IA&AD as a statutory body and delegating powers can enhance audit quality.
   • Lack of independence: The CAG cannot release reports to the public if not presented in the legislature within a month of submission.
   • No fixed timeline: No set deadlines for document production or responses, and no contempt proceedings for non-compliance.
   • Post-expenditure audit: The CAG’s audits are conducted after expenditure, making it more of an auditor than a comptroller, unlike the UK counterpart.
3. Professional
   • Complexity of task: Audits have become more complex due to sophisticated corruption and maladministration.
   • Excessive criticism: CAG reports sometimes face criticism for exaggerated loss estimates or figures.
     • To maintain integrity, the CAG should adhere to rigorous auditing standards.
   • No enforcement: The CAG lacks the power to enforce its findings.
   • Government inaction: CAG reports are often ignored or buried in government records without proper follow-up.

 

Changing Role of CAG

• Private Sector: Besides the historic task of keeping a close watch on central and state governments, CAG is now auditing several public-private partnerships (PPP) projects.
• From climate change to PPPs: The CAG’s audit mechanisms must adapt to oversee funding and public good exploitation.
• New tasks: CAG must prepare for audits involving Sustainable Development Goals and the Goods and Services Tax.
• Technological Integration: Following the Big Data revolution, CAG launched a data management policy in 2016 and established a Centre for Data Management and Analytics in Delhi.
  • In 2017, CAG hosted the Commonwealth Auditors General Conference, focusing on public audit technology and environmental audits.
• International opportunities: CAG audited UN headquarters, showcasing the credibility of the Indian CAG in complex international operations.

 

Example of Pro-active work of CAG 

Vinod Rai, the 11th CAG of India (2008-13), exposed significant corruption scandals:

• 2G spectrum licenses scam
• Coalgate (coal blocks allocation scam)
• 2010 Commonwealth Games expenditure
• Wasteful fertilizer subsidy spending
• Defense spending anomalies
• Contract anomalies in natural gas reserve exploitation

 

Way Forward

• Access to records and information: Auditors should receive access to records promptly, similar to citizens under RTI Act 2005. Department heads must explain delays.
• Independence to CAG: A 2015 conference of PACs highlighted the need for CAG’s complete independence, similar to the UK and Australia.
  • Prior consultation with the Chairman, PAC, was recommended before appointing the CAG, suggesting amendments to the CAG Act.
• Reforms suggested by Vinod Rai (former CAG):
  • Increase sphere: Bring all PPPs, PRIs, and government-funded societies under CAG’s scope.
  • Amendment with time: Update the CAG Act of 1971 for evolving governance needs.
  • Selection overhaul: Implement a collegium-type mechanism for CAG selection, akin to appointing a Chief Vigilance Commissioner (CVC).

 

ATTORNEY GENERAL AND ADVOCATE GENERAL

The Attorney General is the highest law officer of India. As a chief legal advisor to the Government of India, he advises the Union government on all legal matters. The highest law officer of the states in India is called the Advocate General of State.

Constitutional Provisions

1. Attorney General
   • Article 76: Provides for the office of AG of India. He is the highest law officer of India.
   • Article 88: Rights of Attorney General with respect to the Parliament and its proceedings.
2. Advocate General
   • Article 165: Provides for the office of Advocate General of State. He is the highest law officer of the state.
   • Article 177: Rights of Advocate General of State with respect to the State Legislature and its proceedings.

 

Attorney General of India

1. Powers and Functions of Attorney General (AG)
   • Give advice on legal matters: He advises the Government of India on legal matters referred to him.
   • Duties assigned by President: Performs other legal duties assigned by the President.
   • Appears on behalf of GoI in courts: Represents GoI in all cases (suits, appeals, etc.) in the Supreme Court involving GoI.
   • Represents GoI in court: Represents GoI in references made by the President to the Supreme Court under Article 143 of the Constitution.
2. Rights of the Attorney General
   • Right of audience in court: He has the right to audience in all courts in India.
   • Can take part in proceedings: He can speak or take part in the proceedings of both Houses of Parliament and joint sittings but cannot vote.
   • Can take part in committees: He can speak or take part in committee meetings but without a right to vote.
   • Privileges: Enjoys the privileges and immunities of a Parliament member.
3. Limitations on the Attorney General
   • No advice against government: Should not advise or hold a brief against the Government of India.
   • No advice against GoI when appearing for it: Should not advise or hold a brief in cases where he is to represent GoI.
   • Criminal Prosecutions: Cannot defend accused persons in criminal cases without government permission.
   • No company appointment: Cannot accept a director position in a company without government approval.

 

Difference between India and USA Attorney General

• Executive authority: The Indian AG does not have executive power, unlike the US AG, who is part of the executive.
• Executive authority functions: In India, these are performed by the Law Minister.
• Private legal practices: The Indian AG can practice private law, unlike the US AG.

 

Current Incident and its Analysis: Recently, the AGI granted consent to initiate criminal contempt court proceedings against a comic illustrator for allegedly scandalizing the judiciary through her tweets and illustrations.

• Legal backing: Prior written consent from the AGI is required for the Supreme Court to initiate criminal contempt as per the Contempt of Courts (CoC) Act, 1971.
• Suo-moto: AGI consent serves as a check on the use of suo-motu power for criminal contempt.
• Safeguard against frivolous petitions: The AG, as an officer of the court, independently verifies whether complaints are valid.
• Exception: AG’s consent is not required when the court initiates a contempt case itself, as it acts under its inherent powers.
• Objective: The purpose of acknowledging a complaint is to save judicial time.

 

Advocate General of State: Functions of Advocate General

• Advice to the Government of the state: Advises the state government on legal matters referred by the governor.
• Appears in court: Represents the state government in all relevant court cases.
• Perform assigned duties: Completes duties as assigned by the state governor.
• Bound by the Constitution: Adheres to constitutional duties and any other applicable laws.

 

CONSENT OF AG TO INITIATE CONTEMPT PROCEEDINGS

Why in news?: Attorney General K K Venugopal granted consent for contempt proceedings against ‘Dharam Sansad’ leader Yati Narsinghanand for alleged remarks against the Constitution and Supreme Court.

 

Significance of AG’s consent

• Save time of judiciary: Prevents judicial time from being wasted on frivolous cases.
• Officer to verify petitions: The AG ensures complaints are valid to protect against frivolous claims.
• Applicable only to private citizens: AG’s consent is required for private citizens to initiate contempt proceedings, not for court-initiated cases.
• Legislative backing: Section 15 of the Contempt of Courts Act requires AG or Solicitor General consent for criminal contempt proceedings.

 

Contempt of Court According to the Contempt of Court Act of 1971:

• Civil contempt: Wilful disobedience to any court judgment, decree, order, or breach of undertaking given to the court.
• Criminal contempt: It refers to any publication or act that scandalizes or lowers the authority of any court, interferes with the due course of any judicial proceeding, or obstructs the administration of justice in any way.
• Punishment: The Contempt of Court Act of 1971 prescribes imprisonment of up to six months or a fine of ₹2,000, or both.

 

Criticism of Contempt laws

• Vestiges of British period: Criticized as a remnant of colonial rule, particularly since the UK has abolished such contempt laws.
• Suppresses dissent: Calls to limit contempt to “willful disobedience” of court directions and remove the aspect of “scandalizing the court.”
• Accountability issues: Lacks mechanisms to verify the legitimacy of claims, potentially leading to judicial overreach.
• Causes judicial delay: Numerous contempt cases pending in High Courts and the Supreme Court, burdening the judicial system.

 

What happens if the AG denies consent?

• End of the matter: If denied, the case typically ends, but the complainant can independently bring it to the court’s attention for suo motu cognizance.
• Alternate approach: Article 129 of the Constitution allows the Supreme Court to initiate contempt proceedings on its own.

 

Criticisms

• Procedural bottleneck: Requiring AG consent is an additional procedural step.
• Overlapping powers: The Supreme Court can bypass AG consent, questioning the necessity of AG’s authority.

 

INTER-STATE COUNCIL

The Inter-State Council is a constitutional, advisory, quasi-federal body established under Article 263 of the Constitution by Presidential Order in 1990, following the Sarkaria Commission’s recommendation.

Provisions

• Prime Minister as the chairman.
• Set up in 1990 via a presidential ordinance under the Ministry of Home Affairs.
• The council may convene at least three times a year.

 

Functions of Inter-State Council

• Inquire: Investigate and advise on disputes between states.
• Investigation: Discuss and review subjects of common interest among the states.
• Advisory Role: Make policy recommendations for better coordination.
• Identify the Common Interest: Recognize common interests in economic and social planning between the Centre and states.
• Monitoring Role: Settle ecosystems management and development of tourism.
• Resolve Problems: Dissolve the funding and execution-related problems on the mega project.

 

Significance of Inter-State Council

1. Government
   • Decentralized Policy: The Inter-State Council is a crucial step in a decentralized polity, where interaction between various levels of government is important.
   • Strengthening Horizontal Federalism: Involved in various issues between administrations, such as interstate water disputes and burning crops in northern states.
   • Accountability: Acts as a dialogue platform, making central and state governments more accountable.
   • Facilitates Cooperative Federalism: A venue for discussing people’s interests and collective decision-making.
   • A Safety Valve: Bridges trust deficits between the Centre and states.
2. States
   • Constitutional Backing: Unlike the NITI Aayog, the ISC has constitutional authority.
   • Platform for Dialogue: Vital during differing political leaderships at Centre and states.
   • Bridging Trust Deficit: Builds confidence between administrative units.
   • Demanding Assistance: Addresses state needs during crises.
   • Represent States: Helps negotiate with foreign governments and funding bodies.

 

Shortcomings of Inter-State Council

• Under Utilisation: Underutilisation of the council is one of the major problems. The ISC has held only 10 meetings in the last 22 years of its existence and made tardy progress in addressing inter-State disputes.
• Function is complementary: It is merely an advisory body with no bindings on either the centre or the state.
• Suggestion Ignored: Thus, often its recommendations are ignored by the government.
• Lack of expertise: It lacks technical and management experts along with the autonomy that is required for effective functioning.
• Not participatory: There is no presence/engagement of civil society in the council which makes it less participatory and cooperative.
• Not a permanent body: The Inter-State Council is not a permanent constitutional body. The President can establish it at any time if it appears to him that the public interests would be served by the establishment of such a council.

Way forward

1. Council
   • Regular Meeting: It is important that the council meets regularly and within a fixed time frame to effectively address the problems/matters pertinent to the prevalent times.
   • Give More Power: Article 263 should give more power and authority to the council rather than merely being an advisory body.
2. Centre

• Appoint Expertise: Council should have experts in its organizational set up drawn from the disciplines of Laws, Management, finance and economics, Political Science besides the All India Services cadre.
• Making it permanent: ISC must be made a permanent body which was one of the important recommendations of the Sarkaria Commission.

• It should be strengthened as a forum for not just administrative but also political and legislative give and take between the centre and states.

1. Civil Society
   • Civil society engagement: ISC should provide wider representation to civil society institutions, NGOs, corporate sector and domain experts to make their representations.

The Inter-state council mandate was inter-State coordination on issues such as river water disputes, problems pertaining to the location, funding and execution of mega projects, ecosystem management, development of tourism, etc. The ISC has not been able to achieve much progress on these fronts. Thus, effective measures are needed to strengthen ISC in order to make it able to fulfill its mandate.

 

GST COUNCIL

The GST Council is established under Article 279A of the Constitution, as per the Constitution (101st) Amendment Act, 2016, and makes GST-related recommendations to both the Union and State Governments. It is a federal body that ensures representation of both Centre and States.

Composition: Chaired by the Union Finance Minister with members including Union State Ministers of Finance and State Finance Ministers.

Vision: Promoting co-operative federalism through GST Council operations.

Mission: Evolving an efficient and IT-driven Goods and Services Tax structure.

Need for a GST Council

1. Governing Body for GST rules: GST Council is the governing body for the implementation of GST rules in India.
2. Provide common platform: It is a federal body that aims to bring together states and the Centre on a common platform for the nationwide rollout of the indirect tax reform.
3. Better decision making: It is tasked with the duties to make important decisions and changes in GST.
4. Authority: The GST Council is authorized to determine the rate of tax applicable under the GST model, tax exemption rules, the due date of submitting GST forms, tax-related laws, and deadlines, and special exemptions for some States of India.
5. Bring uniformity: The GST Council is tasked to ensure that one uniform rate of GST is applied on goods and services all across India.
6. Dispute handling: GST Council is also charged with the duty to create a mechanism with which the following disputes would be settled:
   • Between the Central and State Government.
   • Between the Central Government and one or more States on one side and one or more States on the other side.
   • Between two or more States which occurred due to any recommendation of the GST Council or due to the implementation of the recommendation of the council.

 

Mandate of the GST Council 

The GST council will be supposed to make the recommendation to the Union and State on the following matters:

• On subsuming of various taxes, cess, and surcharge in GST.
• Details of services and goods that will be subjected to GST or which will be exempted from GST.

• On Threshold limit below which, services and goods will be exempted from GST.
• On GST rates including floor rate with bands of GST and any special rate for time being to arrange resources to face any natural calamity.
• Making special provisions for the following states: Arunachal Pradesh, Assam, Jammu and Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh, and Uttarakhand.
• On model law on GST, Principal of levy of GST and the principals which will govern the place of Supply.

 

GST Council and Centre – State Financial Relations

1. Cooperative Federalism: The Council has a representation of all states which provides a superb template for cooperative federalism.
2. Bottom-Up Approach: Realising the future potential of India will require states to be key (if not equal) stakeholders in policy decisions. The council provides states a great say in decision making.
3. Consensus oriented: The way the council is structured, things can’t go forward without a consensus or at least a majority of the votes carrying the resolution.
   • Since the states together account for 2/3 of the votes and the centre holds only a 1/3; given this structure, a consensus would be the preferred option instead of demanding a vote.
4. Quick decision making: GST Implementation Committee (GIC), Standing Committees, and Sectoral Groups have representation of Centre and State Officers in to ensure quick administrative decisions.
5. Uniformity in Tax Structure: Both the Centre and the States agreed to share their powers to achieve uniformity and remove compartmentalization in indirect taxation.

 

Issues

• No-Undo policy: The council’s decisions, if detrimental, cannot be undone by the states and the states will accordingly have to compromise on their budgets and the entire fiscal policies.
• Virtual veto to Centre: It is not possible to attain the desired majority if Union doesn’t vote for the recommendation. In fact, Union can veto the recommendations of the Council.
• Backdoor entry of Centre to State areas: it will not be exaggerated to say that council might act as an instrument for the backdoor entry of the central government into the decision and policy-making sphere of a duly elected state government.
• Different political ideologies: Given the deep political divide, given fundamentally differing political ideologies, the convergence of views between different parties is tough.
• Affect Political Sovereignty of states: Council’s power to make binding recommendations and Union’s virtual veto is a clear abrogation of the fundamental tenet of the Constitution’s federal structure viz. the political sovereignty of states.

 

Way Forward

• National Harmony: While discharging the functions conferred by this Art 279A, the GST Council shall be guided by the need for a harmonised structure of GST and for the development of a harmonised national market for goods and services.
• Economic Survey 2017-18: Hailed GST Council for its cooperative federalism technology which brings together Centre and States and can be applied to many other policy reforms.
• Threshold of Reform: This intangible gain is as important as the fact that India is on the threshold of rolling out a monumental piece of reform.